Digital Evidence: a Game Changer in Litigations

The dominance of e-governance in the government, society and industry is also reflecting in the form of electronic evidences , thus becoming part of  various litigations among various stakeholders in the court.  Electronic evidences, if proved properly , could play a decisive role in the fate of a  case; as it was seen in the case of Panama Paper Leak Case, where  forgery was established wherein  the  electronic documents were held to be forged and anti-dated as was created in the Calibri Font even prior to its launch by the Microsoft.

The supremacy & abundance of electronic evidence in cases is shifting the classification of electronic evidence from  corroborative evidence to  primary evidence and in some of the cases, the only evidence available is digital media like CCTV, Email, SMS, etc. One of the significant advantage of electronic evidence  is the reliability of the electronic evidence as compared to the oral evidence. Another important factor is now the omnipresence of  electronic monitoring  which  automatically captures the electronic evidence of the scene of crime, location of accused and important footprints of the crime. Now these electronic gadgets are the silent witnesses to the crime and collect digital trail objectively without any bias and, if properly proved in the court of law, it can become sole basis of  conviction or arriving at the truth in any case.

Considering the intrinsic probative value of the electronic evidence, it can be used to prove a fact in a much better and easier way, as compared to the oral evidence and being captured contemporarily in an objective manner without any bias, it inherits reliability and would be difficult to rebut by the opposite party. However, the non collection of such evidence could be fatal to the prosecution case, particularly, when the oral evidence is not direct or cogent , as held in the case of State of UP V’s Tomaso Bruno, where the Supreme Court withdrew an adverse inference against the state in it’s failure to collect and produce the CCTV footage where CCTV cameras were located at the scene of crime and  the accused was acquitted.

The traditional method of proving by oral evidence is not only time consuming and  expensive but the right to confront  opposite side witnesses at the trial and challenge their evidence through cross-examination is  perhaps the worst method of arriving at the truth. First, the examination-in-chief of the witness contains lengthy recitation of documents mixed with the submissions and arguments rather than statement of witness in his own words. Further, the cross examination consumes majority of trial time   and it is less focused on the truth about what took place, and more on undermining the credibility of the witnesses. The parties are intending to see their opponent witnesses confused or lying and as such, the system is being questioned as to its value in assisting the court in arriving at the truth.

On the other hand, the challenge with the digital evidence is to preserve it without delay, preserve and  present it in a proper manner to prove the relevancy, admissibility & authenticity.  On weighing the merits & demerits of both, the electronic evidence emerges as a winner as it reduces the time spent in trial, it is more objective & independent and the cost is lesser as compared to proving the facts by oral evidence. Further, even the evidence of truthful witnesses is ‘fallible at best and unreliable at worst’, simply because of the way memory works. The memory fades over  time as the  mental faculties weaken with the passage of time and the derived distilled meaning or impression from perceptions of the events, which are reconstructed for the litigation and subject to powerful bias.

The time is ripe to adopt the approach of abandoning the oral evidence and embracing the documentary/electronic evidence to prove the case for  speedy, economical and effective justice delivery system.  Infact, the way in which the electronic space is growing, the oral evidence is become scarce and in time to come , it would be substituted by the digital footprint and these silent witnesses, their content would dominate  in deciding  the outcome of any litigations.

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